The issue of the application of privacy/data protection laws to political parties in Canada is not new – Colin Bennett and Robin Bayley wrote a report on this issue for the Office of the Privacy Commissioner of Canada in 2012. It gained new momentum in the wake of the Cambridge Analytica scandal when it was brought home to the public in a fairly dramatic way the extent to which personal information might be used not just to profile and target individuals, but to sway their opinions in order to influence the outcome of elections.

In the fallout from Cambridge Analytica there have been a couple of recent developments in Canada around the application of privacy laws to political parties. First, the federal government included some remarkably tepid provisions into Bill C-76 on Elections Act reform. These provisions, which I critique here, require parties to adopt and post a privacy policy, but otherwise contain no normative requirements. In other words, they do not hold political parties to any particular rules or norms regarding their collection, use or disclosure of personal information. There is also no provision for independent oversight. The only complaint that can be made – to the Commissioner of Elections – is about the failure to adopt and post a privacy policy. The federal government has expressed surprise at the negative reaction these proposed amendments have received and has indicated a willingness to do something more, but that something has not yet materialized. Meanwhile, it is being reported that the Bill, even as it stands, is not likely to clear the Senate before the summer recess, putting in doubt the ability of any amendments to be in place and implemented in time for the next election.

Meanwhile, on June 6 2018, the Quebec government introduced Bill no 188 into the National Assembly. If passed, this Bill would give the Quebec Director General of Elections the duty to examine and evaluate the practices of the provincial political parties’ collection, use and disclosure of personal information. The Director General must also assess their information security practices. If the Bill is passed into law, he will be required to report his findings to the National Assembly no later than the first of October 2019. The Director General will make any recommendations in this report that he feels are appropriate in the circumstances. The Bill also modifies laws applicable to municipal and school board elections so that the Director-General can be directed by the National Assembly to conduct a similar assessment and report back. While this Bill would not make any changes to current practices in the short term, it is clearly aimed at gathering data with a view to informing any future legislative reform that might be deemed necessary.

In the wake of the Cambridge Analytica scandal, Canada’s federal government has come under increased criticism for the fact that Canadian political parties are not subject to existing privacy legislation. This criticism is not new. For example, Prof. Colin Bennett and Robin Bayley wrote a report on the issue for the Office of the Privacy Commissioner of Canada in 2012.

By way of preamble to this critique of the legislative half-measures introduced by the government, it is important to note that Canada already has both a public sector Privacy Act and a private sector Personal Information Protection and Electronic Documents Act (PIPEDA). Each of these statutes sets out rules for collection, use and disclosure of personal information and each provides for an oversight regime and a complaints process. Both statutes have been the subject of substantial critique for not going far enough to address privacy concerns, particularly in the age of big data. In February 2018, the House of Commons Standing Committee on Access to Information, Privacy and Ethics issued a report on PIPEDA, and recommended some significant amendments to adapt the statute to protecting privacy in a big data environment. Thus, the context in which the provisions regarding political parties’ privacy obligations are introduced is one in which a) we already have privacy laws that set data protection standards; b) these laws are generally considered to be in need of significant amendment to better address privacy; and c) the Cambridge Analytica scandal has revealed just how complex, problematic and damaging the misuse of personal information in the context of elections can be.

Once this context is understood, the privacy ‘obligations’ that the government proposes to place on political parties in the proposed amendments can be seen for what they are: an almost contemptuous and entirely cosmetic quick fix designed to deflect attention from the very serious privacy issues raised by the use of personal information by political parties.

First, the basic requirement placed on political parties will be to have a privacy policy. The policy will also have to be published on the party’s internet site. That’s pretty much it. Are you feeling better about your privacy yet?

To be fair, the Bill also specifies what the policy must contain:

(k) the party’s policy for the protection of personal information [will include]:

(i) a statement indicating the types of personal information that the party collects and how it collects that information,

(ii) a statement indicating how the party protects personal information under its control,

(iii) a statement indicating how the party uses personal information under its control and under what circumstances that personal information may be sold to any person or entity,

(iv) a statement indicating the training concerning the collection and use of personal information to be given to any employee of the party who could have access to personal information under the party’s control,

(v) a statement indicating the party’s practices concerning

(A) the collection and use of personal information created from online activity, and

(B) its use of cookies, and

(vi) the name and contact information of a person to whom concerns regarding the party’s policy for the protection of personal information can be addressed; and

(l) the address of the page — accessible to the public — on the party’s Internet site where its policy for the protection of personal information is published under subsection (4).

It is particularly noteworthy that unlike PIPEDA (or any other data protection law, for that matter), there is no requirement to obtain consent to any collection, use or disclosure of personal information. A party’s policy simply has to tell you what information it collects and how. Political parties are also not subject to any of the other limitations found in PIPEDA. There is no requirement that the purposes for collection, use or disclosure meet a reasonableness standard; there is no requirement to limit collection only to what is necessary to achieve any stated purposes; there is nothing on data retention limits; and there is no right of access or correction. And, while there is a requirement to identify a contact person to whom any concerns or complaints may be addressed, there is no oversight of a party’s compliance with their policy. (Note that it would be impossible to oversee compliance with any actual norms, since none are imposed). There is also no external complaints mechanism available. If a party fails to comply with requirements to have a policy, post it, and provide notice of any changes, it can be deregistered. That’s about it.

This is clearly not good enough. It is not what Canadians need or deserve. It does not even come close to meeting the standards set in PIPEDA, which is itself badly in need of an overhaul. The data resources and data analytics tools available to political parties have created a context in which data protection has become important not just to personal privacy values but to important public values as well, such as the integrity and fairness of elections. Not only are these proposed amendments insufficient to meet the privacy needs of Canadians, they are shockingly cynical in their attempt to derail the calls for serious action on this issue.

How does one balance transparency with civil liberties in the context of election campaigns? This issue is at the core of a decision just handed down by the Supreme Court of Canada.

B.C. Freedom of Information and Privacy Association v. Attorney-General (B.C.) began as a challenge by the appellant organization to provisions of B.C.’s Election Act that required individuals or organizations who “sponsor election advertising” to register with the Chief Electoral Officer. Information on the register is publicly available. The underlying public policy goals to allow the public to see who is sponsoring advertising campaigns during the course of elections. The Supreme Court of Canada easily found this objective to be “pressing and substantial”.

The challenge brought by the B.C. Freedom of Information and Privacy Association (BCFIPA) was based on the way in which the registration requirement was framed in the Act. The Canada Elections Act also contains a registration requirement, but the requirement is linked to a spending threshold. In other words, under the federal statute, those who spend more than $500 on election advertising are required to register; others are not. The B.C. legislation is framed instead in terms of a general registration requirement for all sponsors of election advertising. BCFIPA’s concern was that this would mean that any individual who placed a handmade sign in their window, who wore a t-shirt with an election message, or who otherwise promoted their views during an election campaign would be forced to register. Not only might this chill freedom of political expression in its own right, it would raise significant privacy issues for individuals since they would have to disclose not just their names, but their addresses and other contact information in the register. Thus, the BCFIPA sought to have the registration requirement limited by the Court to only those who spent more than $500 on an election campaign.

The problem in this case was exacerbated by the position taken by B.C.’s Chief Electoral Officer. In a 2010 report to the B.C. legislature, he provided his interpretation of the application of the legislation. He expressed the view that it did not “distinguish between those sponsors conducting full media campaigns and individuals who post handwritten signs in their apartment windows.” (at para 19). This interpretation of the Election Act was accepted by both the trial judge and at the Court of Appeal, and it shaped the argument before those courts as well as their decisions.

The Supreme Court of Canada took an entirely different approach. They interpreted the language “sponsor election advertising” to mean something other than the expression of political views by individuals. In other words, the statute applied only to those who sponsored election advertising – i.e., those who paid for election advertising to be conducted or who received such services as a contribution. The Court was of the view that the public policy behind registration requirements was generally sound. It found that a legislature could mitigate the impact on freedom of expression by either setting a monetary threshold to trigger the requirement (as is the case at the federal level) or by defining sponsorship to exclude individual expression (as was the case in B.C.). While it is true that the B.C. statute could still capture organized activities involving expenditures of less than $500, and might thus have some limiting effect, the Court found that this would not be significant for a number of reasons, and that such impacts were easily reconcilable with the benefits of the registration scheme.

The decision of the Supreme Court of Canada will be useful in clarifying the scope and impact of the Election Act and in providing guidance for similar statutes. It should be noted however, that the case traveled to the Supreme Court of Canada at great cost both to BCFIPA and to the taxpayer because of either legislative inattention to the need to clarify the scope of the legislation or because of an over-zealous interpretation of the statute by the province’s Chief Electoral Officer. The situation highlights the need for careful attention to be paid at the outset of such initiatives to the balance that must be struck between transparency and other competing values such as civil liberties and privacy.